Janus v. American Federation: Labor Rights Within the Legal-Political Paradigm

March 12, 2019 | Patty Zhang

Edited by: Lyle Carrera

Once a vibrant force that rallied together hundreds of thousands of workers, the labor movement has steadily declined over the past few decades. Fifty years ago, 1 in 3 workers were part of a union, compared to only 1 in 10 today.[1] But declining membership isn’t the only problem that unions face. Since 2010, six states have passed right-to-work laws, which prohibit public sector unions from charging non-member employees, even if those employees benefit from collective bargaining.[2] This trend shows no sign of reversing, especially as “the war on labor” becomes an increasingly politicized issue. Since the early 20th century, organized labor has been central to the Democratic Party in terms of winning elections.[3] On the other side of the spectrum, Republicans have an incentive to weaken unions given doing so benefits their electoral prospects. Right-to-work laws are one such method—having decreased the Democratic share of votes by 3.5%. As such, it is no coincidence that the six states who passed right-to-work laws were dominated by Republican legislatures.[4]

But nowhere is the partisan divide on labor rights more evident than in the Supreme Court. In 2016, the Court ruled on following Friedrichs v. California Teachers Association, a case that dealt with whether public sector unions could charge “agency fees,” or payment from non-member employees. Most observers initially predicted the Court would rule 5-4 in favor of right-to-work laws given its conservative and anti-labor five-member majority.[5] However, Justice Antonin Scalia’s death left the Court evenly split among liberals and conservatives, resulting in a 4-4 tie on Friedrichs. This ruling gave unions a brief respite, but not for long. Two years later, President Donald Trump appointed Judge Neil Gorsuch to fill Scalia’s vacancy, thus tipping the scales back towards a conservative majority. And, as before, that partisan divide determined the outcome of the next labor rights case. In Janus v. American Federation, the judges once again ruled along party lines, this time producing a 5-4 decision that upheld right-to-work laws.[6]The Court determined that charging non-members violated the First Amendment, because it forced those individuals to support the union, even if they disagreed with its ideas. As Justice Samuel Alito argued in his opinion, “measures compelling speech are at least as threatening” as those restricting speech.[7]

Janus marked a shift in the Supreme Court’s political balance, but that was to be expected. Throughout history, presidents have typically chosen nominees with similar political views, and for the most part, there was no doubt that Trump would follow this pattern. What was different, however, was the Court’s willingness to exploit this shift in power to disregard precedent and destroy labor unions.

The Court’s ruling in Janus demonstrated a dangerous
and growing tendency to put partisan gain above the law. The decision
overturned the 40 years of precedent that had been established by Abood v.
Detroit Board of Education, which ruled that agency fees were constitutional.
Overturning cases itself is not an anomaly—in fact, most overturns have
historically occurred after the lawmaking majority changed; that is, after
power has shifted between parties.[8] But this is not the case
with Abood and Janus, which were both decided on by conservative
majorities. The reason for this overturn is not transfer of power, but a
broader trend of polarization. When Abood was decided in 1977, parties
were ideologically diverse, with members across the political spectrum. But since
the 1970s, polarization has increased, resulting in more homogeneity and
teamsmanship.[9]
In such a system, voters and party officials tend to side with their party, and
judges are not exempt to this behavior. The seven conservative justices in Abood
supported unions despite their personal beliefs, as they prioritized the law
over politics in their decision.[10] Similarly, in Janus,
Justice Stephen Breyer encouraged his colleagues to put politics aside. He
proposed narrowing the focus of Abood instead of overturning it, so that
the non-member fees would only be used for collective bargaining activities.[11] In this way, it would not
compel speech, as non-members would not be supporting the union’s ideological
activities, only its bargaining. Other justices, however, rejected this
compromise in favor of adhering to their political positions.[12] Their willingness to
disregard a more constitutionally valid option is telling of the extreme
partisanship in our current political climate.

The effects of Janus v. American Federation extend
far beyond political ones. The future of labor unions looks bleak, particularly
in regard to their already-weak collective bargaining powers. Right-to-work
laws lead to a free-rider problem: non-members no longer have an incentive to help
fund unions because they can instead rely on paying non-members. Such an effect
was seen in Iowa, which abolished mandatory agency fees. While 83% of eligible
workers support unionization, after the law was passed, 71% stopped making
contributions.[13]
Similarly, there is less incentive for employees to join unions: Janus
could reduce union membership by 8.2%, amounting to around 700,000 employees.[14] Loss of revenue and
members results in weakened collective bargaining, as unions will not be able
to bring as many disputes to the judicial system, or hire attorneys to
represent them. That can have disastrous impacts, such as lower wages and fewer
benefits for public sector workers. Janus could result in wages dropping
3.6% for state and local government employees, and 5.4% for public school
teachers.[15]
Despite the advances unions have made in the past few decades, many of those
accomplishments could be wiped away in the next few months.

The Court can never be an entirely neutral arbiter of law, but it should not be an entirely political institution, either. Larger political trends over the past few decades have resulted in a paradigm shift in how judges make decisions, especially when their political affiliations conflict with the law. Janus v. American Federation reveals a troubling development, in that judges no longer value the law above their beliefs. Rather, legal precedent has become secondary to personal ideology. This shift will have severe consequences for public sector employees, but also society as a whole. Janus sets a dangerous example for disregarding judicial processes in favor of partisanship, and that will only worsen as our nation becomes more politically divided.

Patty Zhang is a freshman at Johns Hopkins University majoring in Political Science and minoring in Psychology,